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Marshall v O'Flaherty (Costs)

Marshall v O'Flaherty (Costs)

Case [2023] NSWDC 61 17 March 2023

Costs

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Interlocutory Orders

Civil Litigation & Procedure

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Marshall v O'Flaherty (Costs) [2023] NSWDC 61
Hearing dates: 16 March 2023
Date of orders: 17 March 2023
Decision date: 17 March 2023
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendant’s application to set aside order (3) of the orders made by Taylor SC DCJ on 25 October 2022 is dismissed.
(2) The costs of this application are to be included in the costs order of 25 October 2022 when these costs come to be agreed or assessed.

Catchwords:
COSTS – plaintiff brings applications for leave to commence proceedings in the District Court of NSW pursuant to s 26(3) of the Personal Injury Commission Act 2020 (NSW) and to commence proceedings out of time pursuant to s 109 of the Motor Accident Compensation Act 1999 (NSW) – applications granted – orders for costs to be costs in the proceedings but with liberty to apply – defendant seeks orders that the plaintiff pay the defendant’s costs – the “indulgence principle” – role of any “indulgence” factors in the exercise of the court’s discretion – relevance of combative opposition to the orders sought by the plaintiff – degree of weight to be given to orders proposed by the judge hearing the application, who had the benefit of written submissions on costs – whether any new or different costs factor identified – application to vary costs order dismissed.

Legislation Cited:
Motor Accident Compensation Act 1999 (NSW), s 109
Personal Injury Commission Act 2020 (NSW), s 26
Workers Compensation Act 1987 (NSW), s 151D

Cases Cited:
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Choukor v Spiroski (No 2) [2017] NSWDC 15
Fordham v Fordyce [2007] NSWCA 129
Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915
Halikos Hospitality Pty Ltd & Ors v Inpex Operations Australia Pty Ltd [2017] NTSC 17
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143
Judd v Warwick (Costs) [2007] NSWDC 300
Muriniti v Kalil [2022] NSWCA 109
Rafiqi Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria [2022] NSWDC 582
Seary v White (No 5 - Costs) [2008] NSWDC 21
Smith v Grant (2006) 67 NSWLR 735
Stanley v Layne Christensen Company [2006] WASCA 56
Stein v Ryden [2022] NSWCA 212
The President’s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor (No 2) [2020] QSC 11
Wang v ABC Homes (NSW) Pty Ltd (No 2) [2018] NSWSC 1736

Texts Cited:
Nil

Category: Costs
Parties: Phillip Kenneth Marshall (plaintiff)
Thomas O'Flaherty (defendant)
Representation:
Counsel:
Mr B Kelleher SC (plaintiff)
Mr B Jones (plaintiff)

Mr J Turnbull SC (defendant)
Solicitors:
Stacks Goudkamp (plaintiff)
Carroll & O'Dea Lawyers (defendant)

File Number(s): 2021/00350695
Publication restriction: Nil

Judgment

Introduction

The plaintiff was involved in a motor vehicle accident on 3 March 2016. The relevant insurer, the Transport Accident Commission (“TAC”) admitted liability for the accident. The plaintiff also required leave to proceed out of time.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marshall v O'Flaherty (Costs)

Details

AGLC: Marshall v O'Flaherty (Costs) [2023] NSWDC 61
Case: [2023] NSWDC 61
Decision Date: 17 March 2023

CaseChat Overview and Summary

The case of Marshall v O'Flaherty involved the plaintiff, Marshall, who had brought applications for leave to commence proceedings in the District Court of New South Wales under the Personal Injury Commission Act 2020 (NSW) and to commence proceedings out of time under the Motor Accident Compensation Act 1999 (NSW). Both applications were granted, and orders for costs were made, allowing for the costs to be costs in the proceedings but with liberty to apply. Subsequently, the defendant, O'Flaherty, sought orders that Marshall pay O'Flaherty’s costs, raising questions about the indulgence principle and the appropriate weight to give to orders proposed by the judge.

The legal issues in the case centred on the exercise of the court's discretion in awarding costs, particularly the application of the indulgence principle. The court was required to consider the role of any indulgence factors in the exercise of its discretion, the relevance of combative opposition to the orders sought by the plaintiff, and the weight to be given to the orders proposed by the judge, who had the benefit of written submissions on costs. Additionally, the court had to determine whether any new or different costs factors had been identified that warranted a variation of the original costs order.

In addressing these issues, the court noted that the indulgence principle required a consideration of all relevant factors, including the combative nature of the opposition. However, the court found no new or different costs factors that warranted a variation of the original costs order. The court further held that the orders proposed by the judge, who had the benefit of written submissions, should be given appropriate weight. The application to vary the costs order was dismissed, and it was ordered that the costs of the defendant’s application be included in the costs order of 25 October 2022 when these costs come to be agreed or assessed.

Orders

Orders of the court

(1) Defendant’s application to set aside order (3) of the orders made by Taylor SC DCJ on 25 October 2022 is dismissed.

(2) The costs of this application are to be included in the costs order of 25 October 2022 when these costs come to be agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Marshall v O'Flaherty (Costs) [2023] NSWDC 61

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

Rafiqul Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria
[2022] NSWDC 582 Para 1

…ly, as it now turns out: Rafiqi Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria [2022] NSWDC 582) it did not have jurisdiction to hear the matter given that it involved in dispute between residents of two different States.…
Stein v Ryden
[2022] NSWCA 212 Para 10

…id was entirely unreasonable and did not favour the application of any “indulgence” factor. Such an approach had been endorsed in Stein v Ryden [2022] NSWCA 212, in that costs orders were made in favour of the plaintiff, including the costs of the hearing below.…
Muriniti v Kalil
[2022] NSWCA 109 Para 33

…ges may express views on the likely result of costs applications which, although persuasive, are no more than views. For example, in Muriniti v Kalil [2022] NSWCA 109 at [41], Brereton JA, in the course of setting aside costs orders in favour of the plaintiffs in defamation proceedings, noted that the plaintiffs ha…
Franco v Workers Compensation Nominal Insurer
[2020] NSWSC 915 Para 27

…), and it is not uncommon, where there has been opposition, to an order for the defendant to pay costs: Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915. However, even applications of this kind proceed on the basis of the special relationship between the worker and the employee as well as an acknowled…
The President's Club Limited v Palmer Coolum Resort Pty Ltd (No 2)
[2020] QSC 11 Para 23

…ciples have been adopted or endorsed in some other jurisdictions ( The President’s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor (No 2) [2020] QSC 11; Halikos Hospitality Pty Ltd & Ors v Inpex Operations Australia Pty Ltd [2017] NTSC 17), but not all ( Stanley v Layne Christensen Company [2006] WASCA…
Wang v ABC Homes (NSW) Pty Ltd (No 2)
[2018] NSWSC 1736 Para 24

…lgence principle in this way, or regard it as a principle of wide application in different areas of the law. In Wang v ABC Homes (NSW) Pty Ltd (No 2) [2018] NSWSC 1736, Parker J stated at [5] – [7]:…
Halikos Hospitality Pty Ltd v Inpex Operations Australia Pty Ltd
[2017] NTSC 17 Para 23

…b Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor (No 2) [2020] QSC 11; Halikos Hospitality Pty Ltd & Ors v Inpex Operations Australia Pty Ltd [2017] NTSC 17), but not all ( Stanley v Layne Christensen Company [2006] WASCA 56).…
Choukor v Spiroski (No 2)
[2017] NSWDC 15 Para 20

…tion to costs orders of this kind has been acknowledged to be a matter lying wholly within the court’s discretion. In Choukor v Spiroski (No 2) [2017] NSWDC 15, Dicker SC DCJ stated at [12]:…
Gillion Pty Limited (Trustee) v Wet Fix Holdings Pty Limited (No 2)
[2016] FCA 1483

…[45]. [7] The application of the principle in a s 459S application was considered by Gleeson J in Gillion Pty Ltd v Wet Fix Holdings Pty Ltd (No 2) [2016] FCA 1483. At [10]-[16], her Honour referred to a number of previous decisions on the question.”…
Seary v White (No 5 - Costs)
[2008] NSWDC 21 Para 21

…Similarly, in Seary v White (No 5 - Costs) [2008] NSWDC 21 Johnstone DCJ said at [32]:…
Judd v Warwick (Costs)
[2007] NSWDC 300 Para 22

…In Judd v Warwick (Costs) [2007] NSWDC 300, Johnstone DCJ said at [6]:…
Fordham v Fordyce
[2007] NSWCA 129 Para 19

…This is often referred to as the “indulgence principle”. In Fordham v Fordyce [2007] NSWCA 129, this was explained by Young CJ in Eq as follows:…
Smith v Grant
[2006] NSWCA 244 Para 10

…ntury, resulted in courts requiring costs to be paid by the party seeking such an indulgence, there is no longer any such general rule: Smith v Grant (2006) 67 NSWLR 735 at 753 ([77] – [79]). While the need for indulgence was a factor, it should be seen in the context of how the application was conducted by the partie…
Brittain v Commonwealth (No 2)
[2006] NSWSC 528 Para 79

…lacement of the presumption: Fordham v Fordyce [2007] NSWCA 129 at [50], Smith v Grant [2006] NSWCA 244 at [79]; Brittain v Commonwealth (No 2) [2006] NSWSC 528 at [12]; Commonwealth of Australia v Smith [2005] NSWCA 478 at [217]; Re: Nardell Coal Corporation (In liq) v Hunter Valley Coal Processing [2003] NSWSC 64…
Stanley v Layne Christensen Company
[2006] WASCA 56 Para 23

…] QSC 11; Halikos Hospitality Pty Ltd & Ors v Inpex Operations Australia Pty Ltd [2017] NTSC 17), but not all ( Stanley v Layne Christensen Company [2006] WASCA 56).…
Commonwealth of Australia v Smith
[2005] NSWCA 478 Para 217

…129 at [50], Smith v Grant [2006] NSWCA 244 at [79]; Brittain v Commonwealth (No 2) [2006] NSWSC 528 at [12]; Commonwealth of Australia v Smith [2005] NSWCA 478 at [217]; Re: Nardell Coal Corporation (In liq) v Hunter Valley Coal Processing [2003] NSWSC 642 at [145].”…
Re: Nardell Coal Corporation (in liq) v Hunter Valley Coal Processing
[2003] NSWSC 642

…se cases into some overarching principle. 51 Mr Simpkins relied on what Campbell J said in Nardell Coal Corporation v Hunter Valley Coal Processing (2003) 178 FLR 400 particularly at 435-436. However, the illustrations given by Campbell J in that case do not convince me that there is some usual principle which is app…
Holt v Wynter
[2000] NSWCA 143 Para 17

…that the party seeking the indulgence would have to pay the costs unless opposition was “wholly unreasonable”: Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 at [121]:…
Re NRMA Ltd
[2000] NSWSC 82

…the scheme companies usually have to pay the objectors’ costs so long as the objectors have not behaved unreasonably: Re NRMA Insurance Ltd (No 1) (2000) 156 FLR 349; [2000] NSWSC 82 at [43]-[45]. [7] The application of the principle in a s 459S application was considered by Gleeson J in Gillion Pty Ltd v Wet Fix Ho…
Autodesk Inc v Dyason (No 2)
[1993] HCA 6 Para 36

…SC relies upon the liberty to apply which was granted. I agree that in such circumstances the principles in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 would not apply, as the judge has invited the application, but nevertheless the order proposed is clearly the costs order that the judge hearing the…

Legislation cited in this decision · 4

Motor Accident Compensation Act 1999 (NSW)
109 2 mentions (from Para 2)
Personal Injury Commission Act 2020 (NSW)
26 2 mentions (from Para 1)
Workers Compensation Act 1987 (NSW)
151D 2 mentions (from Para 27)
Neighbouring Land Act 2000 (NSW)
1 mention

Medium Neutral Citation:	Marshall v O'Flaherty (Costs) [2023] NSWDC 61
Hearing dates:	16 March 2023
Date of orders:	17 March 2023
Decision date:	17 March 2023
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant’s application to set aside order (3) of the orders made by Taylor SC DCJ on 25 October 2022 is dismissed. (2) The costs of this application are to be included in the costs order of 25 October 2022 when these costs come to be agreed or assessed.
Catchwords:	COSTS – plaintiff brings applications for leave to commence proceedings in the District Court of NSW pursuant to s 26(3) of the Personal Injury Commission Act 2020 (NSW) and to commence proceedings out of time pursuant to s 109 of the Motor Accident Compensation Act 1999 (NSW) – applications granted – orders for costs to be costs in the proceedings but with liberty to apply – defendant seeks orders that the plaintiff pay the defendant’s costs – the “indulgence principle” – role of any “indulgence” factors in the exercise of the court’s discretion – relevance of combative opposition to the orders sought by the plaintiff – degree of weight to be given to orders proposed by the judge hearing the application, who had the benefit of written submissions on costs – whether any new or different costs factor identified – application to vary costs order dismissed.
Legislation Cited:	Motor Accident Compensation Act 1999 (NSW), s 109 Personal Injury Commission Act 2020 (NSW), s 26 Workers Compensation Act 1987 (NSW), s 151D
Cases Cited:	Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Choukor v Spiroski (No 2) [2017] NSWDC 15 Fordham v Fordyce [2007] NSWCA 129 Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915 Halikos Hospitality Pty Ltd & Ors v Inpex Operations Australia Pty Ltd [2017] NTSC 17 Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 Judd v Warwick (Costs) [2007] NSWDC 300 Muriniti v Kalil [2022] NSWCA 109 Rafiqi Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria [2022] NSWDC 582 Seary v White (No 5 - Costs) [2008] NSWDC 21 Smith v Grant (2006) 67 NSWLR 735 Stanley v Layne Christensen Company [2006] WASCA 56 Stein v Ryden [2022] NSWCA 212 The President’s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor (No 2) [2020] QSC 11 Wang v ABC Homes (NSW) Pty Ltd (No 2) [2018] NSWSC 1736
Texts Cited:	Nil
Category:	Costs
Parties:	Phillip Kenneth Marshall (plaintiff) Thomas O'Flaherty (defendant)
Representation:	Counsel: Mr B Kelleher SC (plaintiff) Mr B Jones (plaintiff) Mr J Turnbull SC (defendant) Solicitors: Stacks Goudkamp (plaintiff) Carroll & O'Dea Lawyers (defendant)
File Number(s):	2021/00350695
Publication restriction:	Nil